News & Events

“Preposterous:” Professor William C. Banks Speaks to Military Times on Calls for Martial Law

Calls for martial law and US military oversight of new presidential election draws criticism

(Military Times | Dec. 2, 2020) The idea that the U.S. military would oversee a new nationwide presidential election — ordered under martial law by President Donald Trump — is “insane in a year that we didn’t think could get anymore insane,” a defense official tells Military Times.

“Martial law has no place in the United States.”

Yet retired Army Lt. Gen. Michael Flynn promoted that exact idea Tuesday evening when he tweeted a press release from an Ohio-based conservative political organization …

… The idea is “preposterous,” said Bill Banks, a Syracuse University professor with expertise in constitutional and national security law.

“Apart from the fact that state and now federal investigators have found no evidence of election fraud that would change the election outcome, martial law has no place in the United States absent a complete breakdown of civil governing mechanisms,” he told Military Times.

Martial law, he added, “simply has the military in charge, subject only to military orders, not civilian law.”

It has not been invoked in the U.S. “since the attack on Pearl Harbor, and there is no likelihood or justification for martial law now,” said Banks. “Our civilian institutions have, in fact, revealed themselves to be resilient in responding to unprecedented partisan attacks on election administration and vote counting in state and local systems across the United States” …

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Professor Mark Nevitt: Climate Change, National Security, & the New Commander-in-Chief

(Just Security | Dec. 2, 2020) President-elect Joe Biden is 50 days away from assuming office as commander-in-chief. He has committed to taking bold, historic action on climate change and has named climate change one of the four crises facing the United States. He has also pledged to integrate climate change into national security decision-making. This stands in stark contrast to the Trump administration, which questioned the underlying climate science and deleted “climate change” from the National Security Strategy.

What are the president’s authorities as commander-in-chief to “combat” the national security threats posed by the climate crisis?

At the same time, Biden may ultimately face a GOP Senate, depending on the outcome of the runoff elections in Georgia. This would strike a blow to his boldest climate ambitions—and may undermine the passage of comprehensive climate legislation. If this comes to pass, executive branch action will take on heightened importance. Regardless of any legislative effort, the Environmental Protection Agency (EPA) and other administrative agencies will likely reinstitute and strengthen Obama-era regulations to address climate change under existing legal authorities such as the Clean Air Act. But what are the president’s authorities as commander-in-chief to “combat” the national security threats posed by the climate crisis?

In addition to regulatory action under the Clean Air Act and similar authorities, Biden possesses broad constitutional authorities independent of Congress to address the climate-security impacts. I highlight four below, to include:

  1. appointing key personnel that prioritize climate change as a security issue;
  2. reducing our carbon emissions across the federal government;
  3. safeguarding critical national security infrastructure; and
  4. responding to climate-exacerbated conflicts and natural disasters at home and abroad.

Appointing Climate-Security Expertise: Personnel as Policy

First, the Constitution grants Biden broad, Article II appointment powers. His recent appointments of key personnel to national security positions—many of which do not require Senate advice and consent—highlight the growing merger between climate change’s impacts and our national security interests. For example, Biden just announced that former Secretary of State John Kerry will serve as the nation’s first special presidential envoy for climate change (the so-called “climate czar”). Kerry has unique climate experience. As a senator, he played a leadership role in the Senate’s last attempt at climate legislation in 2009. As secretary of state, he played a leadership role in the successful Paris Climate negotiations. Kerry’s new position, which does not require Senate confirmation, will also have a seat on the National Security Council—a historic first. This reflects a mature acknowledgment that climate change serves as both a “threat multiplier” and “catalyst for conflict” that requires integration across national security planning …

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Professor William C. Banks Discusses Presidential Transition on Lawyer 2 Lawyer

On Lawyer 2 Lawyer, host Craig Williams is joined by William C. Banks, professor and former interim dean from the Syracuse University College of Law and professor Leslie Gielow Jacobs, director of the McGeorge School of Law Capital Center for Law & Policy, as they explore the practical impacts of a delayed transfer of power from an uncooperative incumbent administration, both for the incoming administration and the American people. They’ll discuss what lessons we can learn from the past, and what options the Biden administration may have going forward.


The transition of presidential power is the process during which the president-elect of the United States prepares to take over the administration of the federal government of the United States from the incumbent president. The peaceful transition of government has long been a hallmark of American democracy.

In what has become an unfortunately common refrain, 2020 has proven different. For weeks following the election being called for Joe Biden, the Trump administration refused to begin the transition process. It was in these circumstances that this episode was recorded. However, since then, the General Services Administration has decided to release funds to the incoming Biden administration to facilitate a transition, but that doesn’t necessarily mean a smooth transition is here.

The possible impact of the delays, continuing refusals to concede defeat, and ongoing litigation disputing the results in multiple swing states give rise to concerns regarding national security, the economy, and the government’s ability to properly address the effects of the Coronavirus.

Transition of Power

 

Professor William C. Banks Optimistic About Successful Transition for Biden Despite Delays

(WAER | Nov. 24, 2020) A Syracuse University Law School Professor says President Elect Joe Biden won’t have a problem catching up three weeks after the election because his team has been preparing all along. William Banks says Biden’s planning began when he clinched the democratic nomination last summer. He thinks the delay by the Trump Administration to share information to Biden will be “negligible to none.” However, he feels it comes with other costs.

“I feel a great deal has been lost symbolically and I believe our democratic institutions have been severely beat up by the bruising battles that have been fought for no good reason.”

Biden’s team can now engage in daily national security updates and classified briefings with the Trump Administration. Banks says Biden’s cabinet is filled with diversity and experience.

“Some of them are from the Obama administration, so of them much further back, like John Kerry who will be a cabinet-level official responsible for climate change. It’s Kerry’s deep passion,” Banks said …

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DHS Senior Executive Matthew L. Kronisch Joins SPL as Distinguished Fellow in Residence

The Syracuse University Institute for Security Policy and Law (SPL) is pleased to welcome Matthew L. Kronisch as a Distinguished Fellow-in-Residence. Kronisch is the first ever Department of Homeland Security (DHS) Office of the General Counsel Senior Executive assigned to an academic institution under the Intergovernmental Personnel Act. The IPA provides a mechanism through which the government and academic institutions can benefit from the mutual exchange of the expertise and experience of their employees. 

Kronisch currently serves at DHS as Associate General Counsel for Intelligence. As a Distinguished Fellow in Residence, Kronisch will conduct research and teach a seminar focused on the policy and law of homeland intelligence, as well as serving as an intelligence community career advisor for the Syracuse University Intelligence Community Center of Academic Excellence. His scholarship will address lessons learned during the first 20 years after the Sept. 11, 2001, terrorist attacks and how those lessons might be applied to DHS and the intelligence function in a democratic society.

“We are delighted that Matt will be joining our team,” says SPL Director the Hon. James E. Baker. “As a career public servant, Matt has been at the intersection and front lines of liberty and security since DHS was established. This is a remarkable run by a remarkable public servant—no wonder President Barack Obama awarded Matt a Presidential Rank Award in 2011 for his work applying law and democratic values to the function of domestic security and intelligence.”

Continues Judge Baker, “Matt not only has a great deal to teach our students, through his writing he will have an opportunity to articulate to a larger audience his vision for the future of DHS and its intelligence mission as we enter the 20th anniversary since 9/11.”

Before establishing the intelligence law practice at DHS and serving as Senior Legal Advisor to each of DHS’ chief intelligence officers, Kronisch developed intelligence oversight policy for the US Department of Defense military services and defense agencies, and he served as an active duty US Navy Judge Advocate, including assignments advising on special warfare and counter-narcotics operations.

Professor Robert Murrett Voices Concerns About Pentagon “Exodus” in Government Executive

Pressure Continues to Mount for GSA to Ascertain Biden as Presidential Election Winner

(Government Executive | Nov. 12, 2020) It’s been five days since media organizations determined Democratic candidate Joe Biden secured enough electoral votes to become president-elect, but the General Services Administration has yet to give the go-ahead for the formal transition process to begin and more voices are calling on the agency to do so.

Despite the progress the Biden transition team has been making, GSA Administrator Emily Murphy, a political appointee, needs to “ascertain” a winner before the Biden team can send personnel into the agencies, obtain briefing books prepared mainly by career civil servants and access millions in funds …

… Syracuse University Professor Robert Murrett, who is a former career intelligence officer in the Navy, told Government Executive on Thursday he “would be more concerned” if the president-elect was someone other than Biden since he “is so familiar with the national security arena” from his tenure as vice president and chairman of the Senate Foreign Relations Committee and it’s “also very helpful” that Harris is on the Senate Select Committee on Intelligence.

However, Murrett said he is very concerned about the “exodus” of top officials at the Pentagon this week along with “the number of non-Senate confirmed acting officials we have across government” during this notably vulnerable time period …

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A Higher Calling: Hon. James E. Baker Reflects on Veterans Day

Veterans Day
Hon. James E. Baker salutes after graduating from the Marine Officer Candidates School.

The Hon. James E. Baker has always known that he was meant for a life of public service. Growing up in Cambridge, Massachusetts, he was raised—as his mother once told him—to be a teacher. But he had other plans.

“I always think about the people who served who didn’t come home. They hold a special place for all of us on Veterans Day.”

“I came to the conclusion at a young age that anybody who had the educational opportunities I was given had an obligation to perform public service,” says Judge Baker, a professor in Syracuse University’s College of Law and director of the Institute for Security Policy and Law. “Teaching is public service, but I embraced the concept of the citizen-soldier.”

Baker joined the U.S. Marine Corps at the age of 18 after spotting several recruitment brochures on the floor of the college post office. “I was looking for the hardest thing I could do and found it on the floor of the post office,” he says. He started his military career as an infantry officer in the Marine Corps and subsequently joined the staff of Sen. Daniel Patrick Moynihan. He was a judge on the U.S. Court of Appeals for the Armed Forces, a federal civilian court that hears military justice appeals, for 15 years before retiring in 2015.

It was Sen. Moynihan who urged him to go to law school, an idea that Baker initially wasn’t crazy about but eventually warmed to. “I do love the concept of rule of law. I want to live in a democracy and in a country that’s governed by law. Having the opportunity to support and defend the Constitution, I think, is as high a calling as you can have as a lawyer,” says Baker, who is partial to all corps such as the Peace Corps and AmeriCorps. “It is also the oath that service members take defining their ultimate duty: ‘to support and defend the Constitution.’”

Baker has taught at several law schools around the country and says Syracuse University’s commitment to veterans is one of the things that distinguishes the school. He says he encountered only a single veteran on the faculty of the other law schools where he taught. “College campuses tend not to be places where there’s a lot of military experience, and one of Syracuse’s strengths is that they value and embrace that experience,” he explains. “In academics, we recognize diversity as an educational value and a democratic principle. The military is the most diverse institution I have ever been associated with, which is likely one reason it puts so much emphasis on character, commitment and competence as virtues—not where you are from, your school or who your parents are.”

One of the ways the College of Law has been particularly helpful to active duty students is through its online law degree JDinteractive, Baker says. Many of the program’s students are active duty service members, veterans or military-connected. “Syracuse University and the College of Law provided the platform for these students, who otherwise wouldn’t have had the opportunity to attend law school.”

As the Orange community celebrates Veterans Day, Baker reflects on those who have served a greater good. “I always think about the people who served who didn’t come home. They hold a special place for all of us on Veterans Day.” Three years ago, Baker started a tradition of the law school holding its own Veterans Day commemoration. “I wanted to make sure that, even at a university like Syracuse that genuinely values military service, its law school also made that connection and celebrated this mission of supporting and defending the Constitution.”

https://www.syracuse.edu/stories/professors-reflect-veterans-day/

Professor Mark Nevitt in Newsweek: A Biden Presidency Would Be a Chance for Climate Legislation

Joe Biden Says U.S. Will Rejoin Paris Agreement on His First Day As President to Reverse Trump’s Environmental Damage

(Newsweek | Nov. 5, 2020) Joe Biden has said the U.S. will rejoin the Paris Climate Agreement on the same day he becomes president, should he win the election.

“Today, the Trump Administration officially left the Paris Climate Agreement,” he tweeted. “And in exactly 77 days, a Biden Administration will rejoin it.”

This will be the first step for Biden in his undertaking of the mammoth task of undoing four years worth of environmental deregulation …

… Mark P. Nevitt, associate professor of law at Syracuse University who specializes in climate change law and policy, previously told Newsweek that a Biden win would represent the “first real chance” of climate change legislation for many years.

“Congress last attempted a comprehensive climate legislation package in 2009, but this died in the Senate,” he said. “The Obama Administration was forced to rely upon executive action, but these actions can be rescinded by future administrations. Climate legislation would be viewed as a legacy item—not unlike Obama’s Affordable Care Act.

“We will also see the U.S. re-enter the world stage on climate change. The U.S. is the world’s largest historical emitter of greenhouse gas emissions and the second-largest annual emitter behind China. The world needs U.S. leadership and innovation on the climate stage” …

Read the full article.

Hon. James E. Baker: Obedience to Orders, Lawful Orders, and the Military’s Constitutional Compact

(Just Security | Nov. 2, 2020) An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath:

“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Introduction

During the height of the Watergate scandal in 1974 Secretary of Defense James Schlesinger is said to have become so concerned about President Nixon’s emotional state that he instructed the military chain of command that any orders conveyed directly by the President to the military should be re-routed through him to determine if they should be followed. Schlesinger was particularly concerned about orders pertaining to nuclear command and The Trump Administration, which is to say President Trump, has renewed interest in the subject of nuclear command and control and more generally the question of lawful orders.

In 2017, the then Commander of U.S. Strategic Command was asked about the scenarios in which he might advise, or even push back against, the President in a discussion on nuclear matters. General John E. Hyten, who now serves as the Vice Chairman of the Joint Chiefs of Staff, responded:

I think some people think we’re stupid. We’re not stupid people. We think about these things a lot. When you have this responsibility how do you not think about it? And so – but what people forget is this is a military mission and a military function. And since the day I joined the service, 36 years ago, every year I get trained in a law of armed conflict. And the law of armed conflict has certain principles and necessities, distinction, proportionality, unnecessary suffering. All those things are defined. And we get, you know, for 20 years it was the William Calley thing that we were trained on because if you execute an unlawful order you will go to jail. You could go to jail for the rest of your life. It applies to nuclear weapons. It applies to small arms. It applies to small unit tactic. It applies to everything and we apply it as we go through it. It’s not that difficult. And the way the process works – if you want to get the details later, I’ll go into the details later. The way the process works is this simple: I provide advice to the President. He’ll tell me what to do and if it’s illegal, guess what’s going to happen?

Moderator: You say no.

General Hyten: I’m going to say, Mr. President, it’s illegal. And guess what he’s going to do? He’s going to say what would be legal? And we’ll come up with options of a mix of capabilities to respond to whatever the situation is. And that’s the way it works. It’s not that complicated.

More recently, the clearing of protesters in Lafayette Square, the advent of protest movements across the country following the death of George Floyd, and statements by President Trump about the electoral process have prompted questions about when and in what contexts the President may lawfully order U.S. Armed Forces, regular, reserve, or National Guard, into domestic and civil contexts.

President Trump’s tweets, some about military matters, also prompt consideration of what exactly is an order, does it have to take a particular form, and when is a statement by the President a military order? These are urgent questions the answers to which ought to be known not only to the Commander in Chief, but also to the military commanders and units under his ultimate constitutional command. The American public, which reveres the Armed Forces, in part because of their apolitical adherence to law, should know as well so that it can make informed judgments about whether to send its sons and daughters into the Armed Forces and determine whether the military’s leadership is supporting and defending the Constitution and America’s constitutional values and traditions.

However, although the question of lawful orders may be cast and debated with a particular president in mind, or through a partisan lens, questions about lawful orders are recurring and arise in daily national security contexts across administrations as well as everyday military life …

Good Governance Paper No. 21: Obedience to Orders, Lawful Orders, and the Military’s Constitutional Compact

Professor Mark Nevitt: How Will the Presidential Candidates Approach Arctic Policy?

Biden versus Trump: How a new president will affect the Arctic

(High North News | Oct. 30, 2020) With the US election just days away, anxiety is mounting about whether Republican incumbent Donald Trump or Democratic nominee Joe Biden will come away victorious. The stakes have never been higher for the Arctic, say environmental scholars and regional experts …

… Mark Nevitt, an associate professor at the Syracuse University College of Law, agrees that a Biden administration would handle the issue of climate change more effectively.

“It is critically important. We need to work with the leading climate scientists to understand the pace of climate change, permafrost melting, and its impact on local and Indigenous communities”, he says in an email to High North News.

“From a climate science perspective, a future President Biden will emphasize placing resources into better understanding the Arctic’s changing climate. Much like Obama. He has an ambitious, $2 trillion dollar “Biden Plan for a Clean Energy Revolution & Environmental Justice” that is the most-forward looking climate plan of any presidential nominee in history. The Arctic is heavily mentioned and discussed in this context,” he says …

Read the full article.